Copyright The Collaborative Family Law Association of Durham Region
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This is a COLLABORATIVE FAMILY LAW PARTICIPATION AGREEMENT
made on __________________, 2004 by the named parties and their lawyers.
The clients,
John Doe
* and *
Jane Doe
and their lawyers,
Mary Barrister
* and *
Joe Solicitor
John and Jane have chosen to use the collaborative law process to resolve the issues arising out of their separation.
Both John and Jane and and each lawyer is a party to this agreement. Collectively, they are referred to as the "participants".
The purpose of the collaborative law process is to avoid the negative economic, social and emotional consequences that would result from litigation, and to achieve a settlement that is more satisfying to both clients than would result from negotiations within the litigation framework.
In resolving issues about sharing the enjoyment of, and responsibility for their children, the participants will make every effort to reach solutions that promote the children’s best interests.
They will act quickly to resolve any differences over the children in a manner that promotes a caring, loving and involved relationship between them and both clients.
During the collaborative law process neither parent will make changes to the residence of the children, or remove them from Ontario without the prior consent of the other parent.
John and Jane acknowledge that inappropriate communications regarding their separation can be harmful to their children. They will refrain from criticizing or belittling the other parent, in the children’s presence.
The parents will not use the children for the purpose of communicating with each other.
The parents will not discuss settlement issues in the presence of their children. Communication with the children regarding these issues will occur only if it is appropriate and on consent of both parents, or on the advice of a child specialist retained by both parents.
Written and verbal communication among all participants will be respectful and constructive.
Communication during settlement meetings will be focused on identifying the issues arising out of John and Jane’s relationship and separation, determining the underlying interests of each client, developing settlement options based on those interests, and choosing the options that, as much as possible, satisfy the interests of both John and Jane.
Neither John, Jane nor their lawyers will use the threat to withdraw from the process, or to commence legal proceedings as a means of achieving a desired outcome or forcing a settlement.
None of the participants will take advantage of inconsistencies or miscalculations discovered in information furnished by any other participant, but will inform the other participant about them so they can be corrected.
John and Jane will be encouraged to discuss and explore their own and the other’s interests with respect to the issues to be resolved. Each will be encouraged to speak freely and express his or her needs, desires, and options without criticism or judgment by the other participants.
Mary will advise John and Joe will advise Jane of her/his rights and obligations on all issues relevant to the relationship and the separation.
Each lawyer will assist his or her own client in the negotiations. However, the lawyers respect the intelligence of the clients and the clients’ own ability to voice their concerns and express their interests. To the extent that it is practical, and to the degree desired by the clients, the clients will conduct the negotiations with the lawyers present as legal advisors, negotiation consultants and coaches.
When appropriate and needed, and use the services of other professionals such as valuators, child specialists, separation and divorce counselors, financial and tax planners. All such professionals will be retained jointly by the and and will be directed to work in a cooperative manner consistent with collaborative principles.
Prior to retaining another professional, John and Jane will determine whether the fees will be paid by one or both of them, and if by both, the proportion each is to contribute. They will determine also whether any opinion or report will be covered by the confidentiality clause in this agreement. If, for any reason, the clients fail to address the question of confidentiality, any opinion or report given by the professional will be subject to the confidentiality clause of this agreement.
Electing the collaborative law process does not guarantee that all matters will be successfully resolved. If there exists concerns about disharmony, distrust or irreconcilable differences. the process cannot eliminate these concerns.
John and Jane acknowledge that their own lawyers (Mary for John and Joe for Jane) owe them a professional duty of care. Although this agreement binds all four persons (John, Jane , Mary and Joe), there is no legal duty owed by Mary to Jane nor by Joe to John, and specifically acknowledge John that is represented by Mary and Jane is represented by Joe.
If the matter is not resolved in the collaborative law process, each lawyer (and the other lawyers in his or her firm) will be disqualified from representing his or her client in a contested legal proceeding between and .
All rights to examinations under oath, formal court hearings, restraining orders and other procedures provided by law and by the rules of the court are suspended for the duration of the collaborative law process.
John and Jane acknowledge that the utmost integrity and dealing in good faith is required of them and of the lawyers throughout the process.
John and Jane, with the assistance of their lawyers, will voluntarily furnish all information and produce all documents that are important in relation to the issues to be resolved in coming to an agreement. In determining what is important in relation to the issues, the participants will not be restricted by what may be legally relevant or privileged, and acknowledge that in undertaking to furnish all important information and to produce all important documents they are including information and documents that may not be legally relevant, or that may be legally privileged from disclosure.
All decisions made, and any settlement agreement reached, will be based on the understanding that each side has furnished all important information and produced all important documents that ought to have been furnished and produced for a proper resolution of the issues.
Under the law, the right to bring a legal proceeding expires if it is not made within a certain time. In Ontario for instance, unless the parties consent, a proceeding for sharing of property acquired during the marriage cannot be brought later than two years after a divorce or, if no divorce, six years after a separation. This period of two years or six years is called a limitation period.
Both John and Jane agree that the other will not lose his or her rights to commence a legal proceeding or take any legal step if the Collaborative process does not result in a settlement and a limitation period expires during the collaborative process.
Therefore, both John and Jane hereby consents to the suspension for the duration of the collaborative law process of any limitation period limiting the time within which a cause of action or a step in a legal proceeding may be commenced or taken by either of them against the other. If, but for this suspension, such limitation period or time allowed for the taking of any step would expire during the collaborative law process, each client hereby consents to a reasonable extension of time to permit the commencement of the action or the taking of the step.
Client Changing Lawyer: If, for any reason except for a reason set out in the Mandatory Termination clause of this agreement (see below), either John or Jane or both of them wish to retain a new collaborative lawyer to continue the collaborative process, the and/or will give written notice of this intention to the lawyer of the other client.
After being retained, and within 30 days from the date the client gave notice to the other lawyer, the new lawyer and the other participants will execute a new collaborative law participation agreement. If a new agreement is not executed within the 30 days, the other client will be entitled to proceed as if the collaborative law process was terminated as of the date written notice was given.
Lawyer Ceasing to Act: If, for any reason except for a reason set out in the Mandatory Termination clause of this agreement (see below), either lawyer ceases to act for his or her client and thereby withdraws from the process, the lawyer will give written notice to his or her client and to the other lawyer of this event.
If the client intends to retain a new collaborative lawyer and continue with the process, he or she will give written notice of this intention to the other lawyer.
The new collaborative lawyer and the other participants shall execute a new collaborative law participation agreement within 30 days from the date the former lawyer ceased to act for the client and withdrew from the process. If a new agreement is not executed within the 30 days, the other client will be entitled to proceed as if the collaborative law process was terminated as of the date the former lawyer ceased to act.
Client Terminating Collaborative Process: If for any reason except for a reason set out in the Mandatory Termination clause of this agreement (see below), a client decides to terminate the collaborative law process and resort to litigation (with the result that both collaborative lawyers must resign from the matter), written notice of the termination will be given to the lawyer for the other client indicating that the termination is for a reason other than a reason set out in the Mandatory Termination clause.
IX. Mandatory Termination of the Collaborative Law Process
A lawyer must terminate the collaborative law process, if he or she learns that his or her client has withheld or misrepresented information and continues to withhold and misrepresent such information, or otherwise acted or used the collaborative law process in a manner to undermine or take unfair advantage of the other client.
The lawyer terminating the process will advise the other lawyer by notice in writing of the termination without giving the reasons, except to state that the termination is pursuant to the mandatory termination provision of this agreement.
The client giving cause for the mandatory termination will not be permitted to continue the process, or commence a new collaborative process with the other client. This prohibition will be enforced by the other client, and the other client and his or her collaborative lawyer (the lawyer receiving the notice or a successor lawyer), refusing to consent to a continuation or a renewal of the collaborative process.
There will be a thirty (30) day waiting period (except in an emergency) before any court hearing takes place to permit the clients to retain new lawyers and to allow for an orderly transition of the matter.
X. Temporary Agreements in Force During Transition
Subject to any provision in the agreement to the contrary, all temporary agreements will remain in full force and effect during any period when the matter is in transition because a new collaborative lawyer or new collaborative lawyers are being retained to carry on with the collaborative process, or because the collaborative process has been terminated and non-collaborative lawyers are being retained (or the clients or a client intends to act in person without a lawyer) to initiate a different process.
The intent of this provision is to avoid surprise and prejudice to the rights of the other client.
Either client may bring this provision to the attention of the court when requesting a postponement of a hearing.
XI. Confidentiality
All communications and information exchanged within the collaborative process are confidential.
Except with the consent of both clients,
XII. Rights and Obligations During the Collaborative Law Process
Both John and Jane will respect the other’s privacy.
Except for those expenses ordinarily incurred by the family in the normal course of day-to-day living, neither John nor Jane will incur any debt or liability on behalf of the other for household and living expenses without the other’s prior written consent.
Neither John nor Jane will dispose of any personal asset (including assets such as real property, vehicles, savings, investments, pensions, and retirement plans) without the written consent of the other.
Except as may be required in the ordinary course of business, neither John nor Jane will dispose of any business asset without the written consent of the other.
Neither John nor Jane, without the consent of the other, will change the coverage or beneficiary of any existing
XII. Enforceability of Agreements
If the clients require a temporary agreement during the collaborative law process, the agreement shall be in writing and signed by the clients.
XIV. Acknowledgement
John, Jane and their lawyers acknowledge that they have read this agreement, understand its terms and conditions and agree to abide by them.
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